In August 2006, the US District Court for the District of Hawaii considered allegations that the US Department of Agriculture had violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) by granting permits for limited field tests of genetically engineered (GE) corn and sugarcane. The judge decided that the USDA’s Animal and Plant Health Inspection Service (APHIS) had violated the ESA by failing to obtain information about any endangered species and critical habitats in the regions of the proposed tests. Turning to the alleged NEPA violations, the judge said that his review of APHIS’ records revealed no evidence of an Environmental Assessment, an Environmental Impact Statement, or an explanation as to why neither study had been required before granting the permits. The judge granted the plaintiffs summary judgment on claims that APHIS’s approval of the permits had violated the ESA and NEPA.

Following the court’s verdict, a spokesperson for APHIS announced that the agency was devising a comprehensive programmatic environmental impact statement to address concerns about its oversight of GE crops. In two cases decided this year, federal court judges prodded the agency to accelerate an overhaul of procedures.

Bentgrass Approval Gets Mowed

On February 5, Judge Henry H. Kennedy, Jr., of the US District Court for the District of Columbia concluded ruminations about the regulation of GE creeping bentgrass. The bentgrass had been engineered to tolerate glyphosate, the active ingredient in the herbicide Roundup®. GE bentgrass could be used for lawns, athletic fields, and on golf courses. Over the years, efforts to develop Roundup Ready grasses have inspired concern that the gene conferring glyphosate tolerance might spread through reproduction with sexually compatible wild relatives and then persist in the environment.

The plaintiffs alleged that APHIS had acted arbitrarily and capriciously when it denied their petition to list GE bentgrass and glyphosate-tolerant Kentucky bluegrass as noxious weeds pursuant to the Plant Protection Act. APHIS had concluded that no biological basis existed for treating glyphosate-resistant strains of bentgrass and bluegrass differently from their nonresistant counterparts. APHIS then determined whether the plant species warranted quarantine pest status, because the plant is either "new or not known to be widely prevalent." Since neither Kentucky bluegrass nor creeping bentgrass fits this criterion, APHIS concluded that listing was not warranted.

The judge agreed with plaintiffs that the "new or not known to be widely prevalent" standard – borrowed from international agreements – is not a required consideration for the review of a noxious weed petition. APHIS’ insistence on this criterion, the judge decided, was arbitrary and capricious.

The judge vacated the denial of the noxious weed petition and sent the petition back to APHIS. "Congress’s intent in passing the Plant Protection Act (PPA)," the judge wrote, "was plainly to provide for regulation of all dangerous noxious weeds, whether new or old, or whether prevalent or not." The judge also cautioned that APHIS cannot supply its decision without providing a reasoned explanation, informed by sound science.

In a second allegation, plaintiffs claimed that APHIS had failed to comply with its own regulations when it granted field test permits for GE bentgrass. They argued that the agency had approved the GE bentgrass field trials without considering evidence that the plant is a weed in the areas of proposed release, and the agency had failed to make any type of localized weediness determination.

APHIS countered that it had complied with its regulations, which include a state-agency notification process for field trials. If local or state authorities consider the plant to be a weed, then APHIS does as well. If state authorities don’t consider the plant to be a weed, then APHIS doesn’t either.

Although the judge voiced concern that "APHIS has essentially ceded to state authorities the task of considering whether a given organism is a weed in the area of release," courts must give great deference to an agency’s interpretation of its rules. The judge granted summary judgment in favor of defendants.

The plaintiffs also claimed that APHIS had violated NEPA when it failed to determine whether the GE bentgrass field trials qualified as exempt from the agency’s obligation to conduct an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The judge said that the record contained no findings that the field trials fell under this exemption. Yet such findings were unnecessary. Any field test of GE organisms permitted by APHIS pursuant to the Plant Protection Act inherently falls under the "confined field release" NEPA exemption.

Falling within an exemption does not end the story, however. Even when APHIS has determined that an action falls under one of the NEPA exemptions, it still must determine whether an exception to the exemption applies. APHIS must prepare an EA or EIS if a confined field release of GE organisms has the potential to significantly affect the quality of the human environment. For example, the confined release may involve a new species or organism, or novel modifications of an organism that raise new issues. The judge could not find any evidence in the record that APHIS had considered these aspects of the proposed GE bentgrass field tests.

Judge Kennedy found substantial evidence that the field tests may have had the potential to significantly affect the quality of the human environment, and that the tests may have involved, at the least, novel modifications or new organisms that raised new environmental issues. APHIS’ apparent failure to consider these possibilities, Judge Kennedy decided, manifested arbitrary and capricious agency action and violates NEPA.

The judge granted summary judgment in plaintiffs’ favor, and he enjoined APHIS from processing any permit for a plant pest or potential plant pest without inquiring whether the NEPA exception applies to the permit and whether an environmental assessment should be prepared.

No Happy Days for APHIS’ FONSI

On February 13, Charles R. Breyer, a judge in the US District Court for the Northern District of California, decided another case that focused on APHIS’ procedures. This time, APHIS had taken the step of drafting an Environmental Assessment.

In May 2003, Monsanto Company submitted a petition that requested nonregulated status for GE Roundup Ready alfalfa. APHIS prepared an Environmental Assessment and accepted comments from the public about the EA and Monsanto’s petition for deregulation.

Many objected to deregulation of the GE plant. One of the main objections focused on the possibility that bee pollination could spread the glyphosate tolerance gene from GE alfalfa to conventional alfalfa, organically-grown alfalfa, or wild populations of alfalfa. Genetic contamination would affect US markets for organic and conventional products, as well as foreign markets. Seventy-five percent of exported US alfalfa heads to Japan, a country that bans the import of glyphosate tolerant alfalfa. Commentators also objected that deregulation of the GE alfalfa with the affiliated increase in Roundup use could boost the development of glyphosate-resistant weeds.

In June 2005, APHIS issued a Finding of No Significant Impact (FONSI) and approved Monsanto’s deregulation petition. APHIS concluded that it would be "up to the individual organic seed or hay grower to institute those procedures that will assure" that their crops will not include any GE alfalfa. By using reasonable quality control, the agency decided, "it is highly unlikely that the level of glyphosate tolerant alfalfa will exceed 1% in conventional alfalfa hay." This level of contamination would not bar the product from Japan.

While APHIS agreed that the deregulation of the GE alfalfa could lead to the development of additional glyphosate-resistant weeds, the agency did not see this impact as significant. After all, weed species have developed resistance to every widely used herbicide. Alternate herbicides and good stewardship could afford a defense against this potential problem, the agency assured.

Alfalfa growers, the Sierra Club, and other farmer and consumer associations alleged that the USDA’s deregulation of GE alfalfa violated NEPA. They contended that the introduction of the GE alfalfa would pass on the glyphosate tolerance gene to natural alfalfa, a significant environmental impact.

In the judge’s view, APHIS had effectively concluded that, whatever the likelihood of gene transmission, the impact would be insignificant, because organic and conventional farmers bore the responsibility to ensure that such contamination did not occur. Judge Breyer could find no evidence that APHIS had investigated whether farmers could actually protect their crops from genetic contamination.

APHIS could have approved the petition with a geographic limitation to isolate GE alfalfa, but it did not. "APHIS’s rejection of this option," the judge wrote, "without making any inquiry into the extent of likely gene transmission from genetically engineered seed crops to non-engineered seed crops is arbitrary and capricious."

The judge did not care for APHIS’ conclusion about the effect of GE alfalfa on exports. He could find no support in the EA or the FONSI for APHIS’ conclusion that gene transmission is highly unlikely to occur with the application of reasonable quality control. Judge Breyer also decided that the plaintiffs had raised substantial questions about the extent to which the GE alfalfa would contribute to the development of Roundup-resistant weeds, and about methods farmers use to control the resistant weeds.

The judge decided that APHIS had failed to take a "hard look" at the potential environmental impacts of its deregulation decision, as required by NEPA. He granted plaintiffs’ motion for summary judgment on its NEPA claim that APHIS must prepare an EIS.

Judge Breyer ordered the parties to submit a proposed remedy by the end of February. This did not happen. On March 2, the plaintiffs filed a request for permanent injunction against deregulation of the GE alfalfa before APHIS performed an environmental review in an EIS.

Geertson Seed Farms et al. v. Mike Johanns, Civil Action C 06-01075 (N.D. Cal., February 13, 2007). Available at the US District Court for the Northern District of California website (www.cand.uscourts.gov/).

International Center for Technology Assessment, et al. v. Mike Johanns and the Scotts Company, Civil Action 03-00020 (D.D.C., February 5, 2007). Available at the US District Court for the District of Columbia website (www.dcd.uscourts.gov/).